SZEOZ v Minister for Immigration
[2005] FMCA 1431
•30 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEOZ & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 1431 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – RRT decision previously reviewed by Federal Court – no jurisdictional error found by Federal Court – conclusive outcome that RRT decision is privative clause decision – application for judicial review dismissed as incompetent. |
Migration Act 1958 (Cth), ss.91X, 477(1A), 483A
Judiciary Act 1903 (Cth), s.39B
Mohamed v Minister for Immigration & Multicultural Affairs [2002] FCA 4
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (21 June 2004)
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 (9 August 2004)
SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 (14 September 2004)
SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 (9 December 2004)
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004)
SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 (2 October 2004)
| Applicants: | SZEOZ, SZEPA & SZEPB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3118 of 2004 |
| Delivered on: | 30 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 13 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant mother appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Mr I Muthalib |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The respondent’s Notice of Objection to Competency filed on
6 September 2005 is upheld.
The application for judicial review filed on 19 October 2004 is dismissed as incompetent.
The Court directs that no further application by the applicants to review the decision of the Refugee Review Tribunal made on 24 July 2001 and handed down on 15 August 2001 is to be accepted for filing without leave of the Court.
The adult applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3118 of 2004
| SZEOZ, SZEPA & SZEPB |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
By an Notice of Objection to Competency filed on 6 September 2005, the respondent objects to the jurisdiction of this Court to hear the applicants’ application on the basis that it was not filed within 28 days of the notification of the decision sought to be reviewed as required by s.477(1A) of the Migration Act 1958 (Cth) (“the Act”). The respondent submitted that the application should be dismissed as this Court does not have jurisdiction to hear it.
In the alternative, the Notice of Motion filed on 26 July 2005 seeks the summary dismissal of the application filed by the applicant on
19 October 2004 on the grounds that the proceedings are frivolous or vexatious or the proceedings are otherwise an abuse of process.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on
19 October 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 July 2001 and handed down on 15 August 2001, affirming the decision of the delegate of the respondent (“the delegate”) made on 20 April 2001 to refuse to grant the applicants protection (Class XA) visas. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.
For the purpose of this Notice of Objection to Competency, the respondent tendered and applied for the affidavit of Ishan Fuad Muthalib affirmed on 5 September 2005 (“the affidavit of Mr Muthalib”) to be admitted into evidence.
Background
The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Act and have been given the pseudonym “SZEOZ”, “SZEPA” and “SZEPB”.
The applicants are a mother and her children who are citizens of Egypt who arrived in Australia on 30 September 2000 using a valid non counterfeit short stay visitor’s visa issued to the applicant mother in her own name and affixed in an Egyptian passport issued in her own name and was immigration cleared. On 14 November 2000 the applicant mother lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-35) (“CB”). On
20 April 2001 the delegate refused to grant a protection visa (CB pp.48-58) and on 2 May 2001 the applicant mother applied to the Tribunal for a review of the delegate’s decision (CB pp.60-63). Only the applicant mother has made specific claims under the Refugee Convention and for convenience, therefore, she will be referred to as the applicant.
The applicant claimed she was born in Alexandria, Egypt in August 1967 and is a Muslim of Nouban ethnicity. The applicant alleged she separated from her husband in Egypt in 1997 and that neither she nor her children had had any contact with her husband since that time. The applicant also stated that she had not divorced. At the interview with the delegate the applicant maintained she did not know where her husband was however she had heard rumours that he had gone overseas and had remarried. She stated she had not received any financial support from her husband since their separation in 1997 and that she had been financially supporting herself and her children by selling the gold she had acquired as a dowry upon marrying her husband (CB p.54).
During her husband’s absence from Egypt, the applicant claimed she had been subjected to verbal harassment by her neighbours and from men who sat in a café located opposite her residence. The harassment was allegedly subjected upon the applicant due to her being “black, single mother, far away from south Egypt [with] no relatives to protect [her]”. She claimed that her children received similar discrimination and that she had come to Australia for the sake of her children. When questioned as to why she did not live with her family in Nouba, the applicant indicated they were not wealthy and did not have the means to support her. The applicant stated that she was supporting herself and her children with the assistance of the Asylum Seekers Association through the Red Cross (CB p.54).
Litigation history
The affidavit of Mr Muthalib, appearing for the respondent, contained a convenient summary of the litigation history of the application which I have adopted and reproduced as follows:
a)On 10 September 2001 the applicant applied to the Federal Court for review of a decision made by the Tribunal on 24 July 2001 and handed down on 15 August 2001. The Federal Court proceedings were allocated the reference N1295 of 2001.
b)On 22 January 2022 Justice Stone dismissed the applicant’s Federal Court application finding at [15] “… no reviewable error of the Tribunal has been demonstrated”: see Mohamed v Minister for Immigration & Multicultural Affairs.
c)On 19 October 2004 the applicant filed an application in the Federal Magistrates Court again seeking review of the decision of the Tribunal dated 24 July 2001 and handed down on 15 August 2001.
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s findings are contained in the respondent’s submissions prepared by Mr Muthalib and I adopt paragraphs 6 and 7 as follows:
6.At GB86, the Tribunal found the applicant “generally credible”. Although the Tribunal there concluded that the applicant had been “evasive about her relationship with her husband, which is clearly continuing” and had “exaggerated the extent of the discrimination which she had experienced in Alexandria”, the Tribunal accepted that the applicant was “discriminated against as a person of Nubian ethnicity in Alexandria” and that she had suffered harassment. However, the Tribunal specifically rejected the applicant’s claim at the hearing that the harassment was such as to amount to assault (GB87). The application was refused for two separate reasons. The first was that the Tribunal was not satisfied that the harassment of the applicant was sufficiently serious to amount to “persecution” (GB87). The second was that the Tribunal concluded that “even if” that first finding was not correct, it was “not satisfied that there is a real chance that the applicant will be persecuted if she returns to Egypt in the foreseeable future” (GB87). That finding in turn appears to have had two independent bases (explained in the lower half of GB87):
(a)the first was that her husband (whose own separate protection visa application had failed) could return to Egypt with her, thus providing her with male protection. That was a finding of fact which the Tribunal was entitled to make;
(b)the second was that the applicant would not be at risk of persecution in the south where she had family to protect her. Nor had she claimed otherwise.
7.Because of this, the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason.
Respondent’s application
Mr Muthalib, Solicitor appearing for the respondent, indicated that the respondent relied upon the outline of submissions filed on 8 September 2005. In respect of those submissions, I adopt paragraphs 10-22 for the purposes of this judgment:
10.The respondent submits that the application should be dismissed summarily pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (the Rules). Rule 13.10 enables the Court to dismiss a proceeding summarily if no reasonable cause of action is disclosed, if it is frivolous or vexatious or otherwise an abuse of process (see Kosi v MIMIA [2003] FMCA 203, NALE v MIMIA [2003] FMCA 366).
11.In Walton v Gardiner, Mason CJ and Deane and Dawson JJ said that:
“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail … Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.” Citing Reichel v Magrath (1889), 14 App Cas 665, 668; Connelly v Director of Public Prosecutions [1964] AC 1254, 1361-1362.
12.In Applicant A321 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs, Wilcox J found that re-litigating the same application can be an abuse of process. His Honour observed that:
“If I am wrong in saying that this is technically a matter of res judicata, it certainly seems to fall within the Anshun principle. If that be incorrect, I would hold that the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner …” ([2004] FCA 306, [18]-[19])
13.Similarly, in SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs, Madgwick J said:
“Nothing has been put to me to indicate that there is any arguable basis at all for any of the new points sought to be raised and, given that the appellant has previously litigated his way, with legal advice, to a Full Court of this Court, and thereafter, it seems, without any such advice to the High Court, it is high time that all this litigation was put to an end. The proceedings, being groundless on their face, are an abuse of process.” ([2004] FCA 404, [29]-[30], see also S442 of 2002 v MIMIA [2003] FCA 1240, [29]; Applicant A87 of 2003 v MIMIA [2004] FCA 919, [40]; Bal v MIMA [2001] FCA 1191, [24]-[27], where the relationship between Anshun estoppel and abuse of process is briefly discussed.
14.A proceeding is also an abuse of process if regardless of its merits or prospects of success, it is brought as a means of obtaining some advantage for which the proceeding is not designed or some collateral advantage beyond what the law offers: Second Life Décor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78. The respondent submits that it can be inferred from the history referred to above that the application has been made for the purpose of delay to extend the applicant’s period of lawful stay in Australia. Such an inference was drawn by the Court in NALE v MIMIA [2003] FMCA 366.
15.The present application is an abuse of process because the proceedings are groundless and the applicant has already previously litigated the Tribunal’s decision in the Federal Court and that application was dismissed with costs. The respondent notes that the applicant did not appeal from those proceedings and did not commence these proceedings for nearly three years. Re-litigating a case that has already been disposed of by earlier proceedings and by a higher Court is a blatant abuse of process. Therefore the respondent contends that the application should be dismissed as an abuse of process pursuant to Rule 13.10 of the Rules for the reasons given above.
16.The applicability of the doctrines of res judicata, issue estoppel and Anshun estoppel to applications for judicial review was considered in Somanader v MIMA (2000) 178 ALR 677; BC v MIMA [2001] FCA 1669; (2001) 67 ALD 60; on appeal [2002] FCAFC 221 and Re Ruddock; Ex parte LX [2003] FCA 561. The relevant principles are:
a)the doctrines of res judicata and issue estoppel apply to applications for judicial review: see Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342;
b)the doctrine of res judicata applies where the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and no longer has an independent existence, whereas issue estoppel applies where, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order: see Blair v Curran (1939) 62 CLR 464 at 532;
c)in the case of res judicata, the question whether there is an identity between the earlier cause of action and the ones raised in the proceedings said to be the subject of the plea is to be determined by matters of substance rather than the form of the particular pleading or the way in which it is pleaded: see Somanader at [52]; Ex parte LX at [48]; Blair v Curran at [27]-[30];
d)if res judicata applies to the proceeding, there is no discretion in the Court to allow the proceeding to continue: see Somanader at [44] and the cases cited there;
e)the Anshun principle provides that a litigant will not, without reasonable justification, be allowed to raise in a later proceeding a challenge which properly belonged in an earlier proceeding and was not included in it unless special circumstances exist which warrant the Court declining to apply the principle: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558;
f)a powerful indicator that it was unreasonable for the litigant not to raise the challenge in the first proceedings is that the remitted proceedings would result in a conflicting judgment: see Blair v Curran at [40];
g)the consideration of conflicting judgment will not arise in circumstances where the ground relied on in the subsequent proceedings is one that was not available in the first proceedings.
17.In light of the previous judicial review proceeding, the present application is barred by the doctrines of res judicata and issue estoppel: Somanader.
18.The applicant’s first allegation that the Tribunal misinterpreted the definition of “persecution” is in substance the same as that asserted in the applicant’s previous judicial review application. The ground is therefore res judicata, and there is a complete bar to it, as it was extinguished by the prior judgments: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 612-613. The other “grounds” are merely a dissatisfaction with the findings of the Tribunal and traverse impermissible merits review.
19.To the extent the present application is not found to be incompetent or barred by the doctrines of res judicata or issue estoppel, it should be dismissed summarily on the principles of Anshun estoppel: Wong v MIMIA [2004] FCAFC 242.
20.To the extent that the applicant now seeks to agitate any new matters in respect of the Tribunal’s decision, the respondent submits the applicant ought properly have raised these matters in the first judicial review proceedings: R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 76 ALR 256. In short, the applicant has had an opportunity to argue the grounds of review she presently seeks to raise. Indeed, the applicant was legally represented at the hearing before Stone J. The applicant has raised no issue here that has not been or could not have been raised in the previous proceedings considering review of the decision.
21.In summary, the respondent contends that the application should be dismissed on the basis of res judicata or Anshun estoppel.
22.In the alternative, if the conditions necessary for res judicata or Anshun estoppel cannot for some reason be satisfied, the applicant should be prevented by the doctrine of abuse of process from re-litigating questions that have already been decided, or that should already have been decided, by a competent court: see for example R v Balfour.
Applicant’s submissions
The applicant who is also the litigation guardian for the two applicant children appeared as a self represented litigant with the aid of an accredited Arabic interpreter. The applicant had not prepared written submissions in respect of the Notice of Motion or the Objection to Competency. Unfortunately, the applicant had little understanding of the proceedings before the Court or the nature of seeking a judicial review of the Tribunal’s decision. The applicant attempted to raise issues in the form of a merits review of material that was presented both to the delegate and to the Tribunal. Present in the Court was the applicant’s migration agent who did assist in clarifying a number of issues that the applicant had raised but was having considerable difficulty explaining to the Court. The migration agent indicated that the applicant did have the assistance of a solicitor at the time of the Tribunal hearing but she was unable to continue to retain his services because of her economic circumstances. Although some time was spent attempting to clarify the issues the applicant wished to make known to the Court none of the material addressed the issue of the Notice of Motion or the Objection to Competency.
Reasons
Pursuant to s.477(1A) of the Act an application for judicial review must be filed within 28 days of notification of the relevant Tribunal decision. The relevant application was filed on 19 October 2004 seeking review of the Tribunal’s decision made on 24 July 2001 and handed down on 15 August 2001, which is a period in excess of
38 months. In the interim period the decision of the Tribunal had been considered by the Federal Court. On 22 January 2002 Justice Stone dismissed the application finding that no reviewable error by the Tribunal had been demonstrated: [2002] FCA 4. The applicant has not been able to show any reason why this Court should not be bound by that decision such that the time limit under s.477(1A) should not apply. I am guided by the decision of Driver FM in SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 431 (21 June 2004) and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 498 (9 August 2004) which dismissed applications for review filed in similar circumstances as incompetent. Both these decisions were upheld on appeal: SZBML v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1195 (14 September 2004) per Bennett J and SZCTT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1746 (9 December 2004) per Conti J.
Similarly, in SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 598 (13 September 2004) per Driver FM, the Minister’s application was based on an assertion of res judicata, estoppel, abuse of process and jurisdiction. However, in cases where the issue of whether the decision of the Tribunal is a privative clause decision for the purpose of any of the proceedings in this Court and that issue has been conclusively determined by previous proceedings and affirmed on appeal to the Federal Court, this Court is bound by the decision of the Full Federal Court that the primary issue to be resolved is that of jurisdiction. The approach adopted by Driver FM was upheld by the appeal of SZCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1549 (2 October 2004) per Whitlam J.
The Tribunal reached its conclusion as set out in the decision and there is no basis on which jurisdictional error may be established as a consequence. The decision of the Tribunal is a privative clause decision and the respondent’s Objection to Competency should be upheld.
Conclusion
The application filed on 19 October 2004 relates to a private clause decision and has not been filed within 28 days of the applicant being notified of the said decision as required by s.477(1A) of the Act. The respondent’s Objection to Competency is upheld and the applicant’s substantive proceedings should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant mother pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 September 2005
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